Losing faith in consultations

It's been over three weeks since the Supreme Court of Canada gave its last word on the Trans Mountain pipeline expansion project — time enough for people in the Indigenous law field to arrive at some conclusions about what it means.

Many seem to have arrived at two verdicts — first, that when you're dealing with a megaproject backed by the federal government, it's entirely possible to lose while winning, and second, that in this context, 'losing' might not be all it's cracked up to be.

To Merle Alexander of Miller Titerle + Company in Vancouver, the SCC's dismissal of an application by First Nations for leave to appeal February's Federal Court of Appeal decision clearing the federal cabinet's approval of the project validated a consultation process that was shot down by the courts in 2018. As a result, he said, future consultation processes will be insulated from failure as long as the court permits project proponents repeated do-overs.

"When the first round of consultations was rejected by the court, the federal government cleverly followed a former Supreme Court justice's recommendations and managed the reboot," said Alexander, a member of the Kitasoo Xai'xais First Nation. "So they came up with a consultation process that was just good enough to get by the courts, even if it didn't really hear the people being affected.

"It means the government can design a consultation process for appearance's sake that achieves nothing, is nothing, apart from a place where Indigenous people can sound off."

Having sounded off only to find themselves back at square one, said Alexander, "a lot of First Nations have lost faith in the consultation process completely." That loss of faith may mean little to the Trans Mountain project right now — but it could frustrate future infrastructure projects crossing unceded land.

The Trans Mountain experience has undermined the prestige of consultation and the broader "duty to consult" in Indigenous communities, said Eugene Kung, a staff lawyer with West Coast Environmental Law.

"The proponent of the project should not be the one setting the terms of consultation. That's an obvious conflict," he said.

"For project opponents, one of the inherent limits of the consultation process is that, when you win, what you get is more consultations. It's a process of diminishing returns.

"I worry that this approach may result in more conflict down the line. Go back to the Mackenzie Valley pipeline inquiry — it said that issues of title should be resolved before such projects go forward. The duty-to-consult framework was meant to be a stop-gap — a measure to be used while title questions are resolved. But that's not what happened. And it's only going to work for so long."

In a way, the project opponents' defeat at the high court simplified things. Peter Grant, who has been practising Aboriginal law on the west coast since the 1970s, said the SCC's decision signalled that the court saw the project's fate as a political question, not a legal one.

"The Supreme Court tends only to step in where the justices see an opportunity to clarify the law, or when it's an issue of national importance," he said. "So I don't see a lot that can be read into the decision not to grant leave."

The project remains vulnerable on the fundamentals: the pandemic has taken a deep bite out of global oil consumption, and the estimated cost of completing the pipeline recently jumped from $7.4 billion to $12.6 billion.

Alexander argued that the consultation process may now be too expensive for most private firms.

"Canada bought the project, invested billions and still just squeaked by," he said.

A private company will walk away from a project when it ceases to promise a profit. But Ottawa owns Trans Mountain now, which means its measure of the project's viability will be political, not economic.

And political pressure can take many forms, in many places — all at once. Alexander points to the work of anti-pipeline activists who have built small homes along the project route in a bid to slow or stop construction. Given the heightened anxiety over RCMP use of force lately, any future move to use Mounties to break up those encampments risks alienating a portion of the electorate.

"How high do you think Canadians' pain tolerance is when it comes to seeing things like that on the news?" he asked.

Alexander said some of his clients were talking about filing Aboriginal title claims along the pipeline's route before the consultation process had ended. "I think that might have led to different circumstances. They might even have secured a declaration of title before the consultations were over," he said.

"Think about some of those B.C. First Nations like the Squamish that have claims over large portions of very valuable land, like the port of Vancouver. Think about the impact an Aboriginal title claim would have had in that situation."

Kung pointed to the roughly 400 outstanding specific title claims along the pipeline's route — another possible tool for slowing down the work. "Every delay weakens the business case even more," he said.

In short, said Grant, the SCC decision settled nothing. The federal government has tied itself to a trouble-prone infrastructure megaproject that it must somehow push past heavy opposition on the ground. The Trans Mountain expansion is still a long, long way from the finish line.

"Look, I'm a lawyer. But we just marked the 30th anniversary of Oka, which should have taught us a lesson about what happens when people are pushed into a corner," said Grant. "Antipathy towards the process builds to the point of civil disobedience, and it'll be on the federal government's shoulders. The SCC didn't say 'Everything's fine here.' Such legal setbacks don't really stop anything.

"The conversation has to start as one between equal parties. For 16 years since Haida, we've been doing this one way, where the government has never stopped a project after consultation — even though the Supreme Court set out that may have to be an option — and people have come to assume that's how it has to always be.

"If Indigenous people do not believe that the court will protect their rights and the resources on which they depend, what are their other options?"